The Islamic practice of polygamy

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The Islamic practice of polygamy on balancing the human rights of women and the cultural and religious legitimacy of the state
Band, Wendy
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Denver, CO
University of Colorado Denver
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44 leaves : ; 28 cm.


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Polygamy (Islamic law) ( lcsh )
Women's rights -- Religious aspects -- Islam ( lcsh )
Women (Islamic law) ( lcsh )
Women in Islam ( lcsh )
Polygamy (Islamic law) ( fast )
Women in Islam ( fast )
Women (Islamic law) ( fast )
Women's rights -- Religious aspects -- Islam ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Thesis (M.S.)--University of Colorado at Denver, 1998. Political science
Includes bibliographical references (leaves 42-44).
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Department of Political Science
Statement of Responsibility:
by Wendy Band.

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University of Colorado Denver
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THE ISLAMIC PRACTICE OF POLYGAMY: ON BALANCING THE HUMAN RIGHTS OF WOMEN AND THE CULTURAL AND RELIGIOUS LEGITIMACY OF THE STATE by Wendy Band B.A, Queens College of the City University ofNew York, 1970 M.S., New Paltz College of the State University ofNew York, 1974 J.D., University of Denver College of Law, 1997 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Arts Political Science 1998


This thesis for the Master of Arts degree by Wendy Band has been approved by Jana M.Everett


Band, Wendy (M.A., Political Science) The Islamic Practice of Polygamy: On Balancing the Human Rights ofWomen and the Cultural and Religious Legitimacy of the State Thesis directed by Professor Jana Everett ABSTRACT The Western notion of women's equality, the maximum participation of women on equal terms with men, is fundamental to both international law principles and feminist precepts. Many non-Western societies renounce these ideas and continue to adhere to religious and cultural practices that, from a Western perspective, are clearly detrimental to those women who live within these cultures. The focus of this work is on the Islamic practice of polygamy, a religious and culturally accepted multiple-wife practice which denies Muslim women the right to control personal sexual, marital, and family choices. Polygamy conflicts with the recognized tenets of universal global feminism and the sum and substance of human rights protections afforded to women under current international law. This state-sanctioned Muslim practice, part of the fundamentalist Shari'a law, raises the question as to whether, from a Western perspective, the religious and cultural practices of Islamic states can coexist with the Western principles of feminism and the body of international human rights law. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. iii


CONTENTS CHAPTER 1. INTRODUCTION ................................................................. 1 2. ISLAMIC LAW: SHARI' A AND THE PRIVATE RIGHTS OF WOMEN ........................................ .4 3. WOMEN'S RIGHTS AS HUMAN RIGHTS: INTERNATIONAL LAW PRINCIPLES ............................... 9 The Evolution of International Law and the Public/Private Distinction ............................................ 9 Customary Law as a Basis for Women's Human Rights ............................................ 1 0 International Declarations, Treaties and Conventions: The Women's Convention ......................................... 12 The Effect of Islamic State Reservations on the Women's Convention ................................................ 16 4. INTERNATIONAL LAW AND CONFLICTING STATE PRACTICE .......................................................................... 18 Velasquez Rodriguez v. Honduras and State Responsibility ............................................................ 18 Secular v. Religious Law: The Shah Bano Case ......... 20 Women's Rights: International Law Decisions ........... 22 iv


5. HUMAN RIGHTS AS UNIVERSAL WOMEN'S RIGHTS: AN ANALYSIS OF WESTERN AND ISLAMIC FEl\1IN1SM .......................................................................... 25 From Whose Perspective: The Universalist/Cultural Relativist Debate ....................................................... 26 The Women's International Human Rights Movement ................................................................. 27 The Islamic Feminist Perspective ............................... 32 6. RECONCILING THE PRACTICE OF POLYGAMY AND HUMAN RIGHTS DOCTRINE THROUGH REINTERPRETATION ....................................................... 38 7. CONCLUSION .................................................................... 41 BillLIOGRAPHY ....................................................................................... 42 v


CHAPTER I INTRODUCTION Under contemporary international law, the right to control sexual, marital, and family choices is central to the dignity and equality of each individual woman in society and is fundamental to Western-influenced human rights doctrine and Western feminist precepts. Polygamy, a marriage practice of taking multiple wives based on Islamic male guardianship principles, is clearly inconsistent with this theory of gender equality. Where religious law dictates that women are equated with children and the mentally infirm and defines them as wholly dependent upon a male partner, equality is highly unlikely. Relying on religious and cultural practices that institutionalize the inequality of women, polygamy conflicts with the recognized tenets of universal global feminism and the sum and substance of human rights protections afforded to women under current internationallaw.1 This state-sanctioned Muslim practice, part ofthe 1 See generally, the U.N. Charter, arts. 1, 55 and 56; Universal Declaration of Human Rights, art. 2, U.N. GAOR, G.A. Res.217A(III), U.N. Doc. A/810 (1948) provides for the enjoyment of human rights without distinction of any kind, such as ... sex; the International Covenant on Civil and Political Rights, G.A. Res. 220(XXI), 21 U.N. GAOR Supp. No. 16 at 52, U.N. Doc. A/6316 (1966) specifies the to respect all rights set out in the Covenant "without distinction of any kind, including ... sex (art.2) and provides equal rights to many and found a family, equal rights and responsibilities as to marriage, during marriage, and at its dissolution (art. 23); the International Covenant on Economic and Social Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. No. 16 at 49, U.N. Doc. A/6316 (1966) imposes an obligation to guarantee rights contained in the Covenant "without discrimination of any kind as to ... sex (art. 2(2) and to ensure the equal rights of men and 1


fundamentalist customary law, raises the question as to whether, from a Western perspective, the religious and cultural practices oflslamic states can coexist with the Western principles of feminism and the body of international human rights law. Absent international consensus regarding the scope of women's individual rights, the ability to conclude whether the practice of polygamy conflicts with prevailiitg human rights values poses serious philosophical, legal and political questions. The conflict between individual women's rights and Islamic states religious and cultural supremacy places notions of equality in conflict with state sovereignty. From a Western view, it is clear that polygamy is antithetical to women's individual freedom, while from the Islamic perspective it is a culturally accepted and safeguarded reality. This analysis explores the issue of whether existing women's human rights principles can be universally applied to promote and protect women's sexual and marital autonomy while accommodating the cultural and religious norms of Muslim society? Part I will describe the Islamic law that legitimizes polygamy and enumerate the ways in which the practice deligitimizes Muslim women's rights. Part II will women to all the economic social and cultural rights in the Covenant (art. 3); and the Convention on the Elimination of all Forms of Discrimination Against Women. 2 The interchangeable. use of the terms "Muslim society" or "Islamic state(s)" include not only states which are internationally accepted as Islamic Republics but those states which have a majority Muslim population which influences the laws of the state and are guided by the Qur-an and Shari'ah law. See Urfan Khaliq, Beyond the Veil?: An Analysis of the Provisions of the Women's Convention in the Law as Stipulated in Shari 'ah, 2 BUFF. J. INT'LL. 1, FNS (Spring 1995). 2


provide an overview of the international law instruments (with particular emphasis on the Convention on the Elimination of All Forms ofDiscrimination Against Women) and judicial decisions that implement and enforce gender equality and strive to institutionalize universally accepted women's principles.3 Part ill addresses the difficulties that arise where religious and international norms conflict. Part IV provides a synopsis ofthe roots and tenets of international feminism, comparing and contrasting Western ideology with the regional issues raised by Islamic feminists. Part V provides suggestions for the possible reconciliation of the conflicts that result from the clash between normative international law and state personal laws such as polygamy. This note, written from a non-Islamic viewpoint, argues that regardless of Islamic society's historical and cultural roots, polygamy and analogous practices that degrade womenand fail to promote women's rights within the cultural context must be viewed as counterproductive to the whole of society and in conflict with the tenets of international human rights law. 3 Women's Convention, supra note 1. 3


CHAPTER2 ISLAMIC LAW: SHARI' A AND THE PRIVATE RIGHTS OF WOMEN The worldwide proliferation of feminist movements together with increased Third World representation at the UN Women's Conferences has expanded the province of women's issues to include culturally sanctioned discrimination. In recent years certain controversial cultural practices, notably female genital mutilation, have come under intense debate within the international community. Polygamy, although a less graphic and less sensationalized practice, similarly and more insidiously compromises a woman's human rights and warrants equal scrutiny. Separation of church and state is a notion foreign to Islamic societies where state political and religious functions are indistinguishable. The religious tenets and principles of the culture provide more than spiritual guidance; they are a way oflife.4 The source ofMuslim doctrine relating to the private areas of marriage and family is controlled by the Shari'a. This religion-driven system of law was developed by the Islamic prophet Muhammad al-Shafi'i during the eighth and ninth centuries as a means of melding the religious teachings of the holy Qur' an, and the Sunna, the 4 Kimberly Younce Schooley, Cultural Sovereignty, Islam and Human Rights: Toward A Communitarian Revision, 25 CUMB. L. REV. 651, 661 (1994-1995). 4


teachings ofMuhammad, with daily life.5 Shari'a doctrine which is controlling law in a majority of Muslim countries, is premised on the notion of paternalism over women and characterized by countless features of gender inequality. These features affect the fundamental rights and choices of women in marriage, divorce and gender -related matters.6 Polygamy, the well-established Islamic marital practice sanctioned by the Qur'an, allows a man to take up to four wives providing he cares for each equally.7 The male may divorce any wife at will without accountability to any judicial forum or religious or legal authority.8 Although a few progressive Islamic states allow prenuptial contracts, generally, a woman may be married to only one man at a time and may obtain divorce only where specific grounds exist and only with a judicial ruling in her favor. This inconsistency in the law can contribute to placing Islamic women in a position of harsh economic and psychological servitude. Anandhi Venkat:raman, Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari 'a and the Convention Compatible? 44 AM. U.L. REV. 1949, 1965 (June 1995). 6Id. 7 The Glorious Qur 'an 179 (A. Yusuf Ali trans., 2d ed. 1977). The passage reads: If ye fear that ye shall not Be able to deal justly with the orphans, Marry women of your choice, Two, or three, or four; But ifye fear that ye shall not Be able to deal justly (with them), Then only one or (a captive) That your right hands possess. That will be more suitable, To prevent you From doing injustice. 8 Abdullahi Ahmed An-Na'im, The Rights of Women and International Law in the Muslim Context, 9 WHriTIERL.REV. 491, 503 (1987). 5


This marital arrangement in which a male may take up to four wives based on custom and tradition is a major impediment to gender equality in Muslim nations. Polygamy predetermines stereotypical roles for both the male and female within the society. From a Western viewpoint, the polygamous marital experience for the man is marked by freedom and control in contrast to the woman, who experiences a life of subjugation behind her veil. The male, head of the extended family, serves as caretaker, provider, and sexual mate to multiple partners. He is engendered with complete power over areas of economic control and family responsibility. The woman as party to a polygamous marriage is expected to serve in an obedient and unquestioning manner. She must provide child-bearing and child-rearing services, sexual accommodation, cleaning and cooking upon demand, and always without complaint. Any transgression by the wife can result in immediate divorce. Shari'a law does not ensure economic support of a woman by her husband after divorce, and consequently the woman may live in fear of economic upheaval. The man, however, remains economically unencumbered and free to choose yet another It must be noted that for many Muslim women a polygamous marriage is not only acceptable, but fundamental to the roots of the religion and society. 10 Many 9 Abdullahi Ahmed An-Na'Im, State Responsibility to Change Religious and Customary Laws in HUMANRIGHTSOFWOMEN, 167, 182 (RebeccaJ. Cook, ed.,1994). 10 Dr. Lois Lamya' al Faruqi, Islamic Traditions and the Feminist Movement: Confrontation or Cooperation? available at MUSLIM WOMEN's HOMEPAGE, 6


Islamic women believe that before God or Allah, no inequality between the sexes exists and the division of labor along sex lines is beneficial to all members of the society.11 The notion of the individual actor is counter to the traditional focus on the welfare of the extended family and the community, with Islam instilling in the adherent a sense of his or her place within the family and responsibility to that group. It is the role of the Islamic woman according to religious tenets to balance or even subordinate her individuality to preserve and strengthen the family unit.12 From an outsider's view, however, the system of polygamy appears to have evolved solely for the benefit and growth of men. The state defends the practice arguing that such relationships discourage extramarital affairs and alleviate the problem of unmarried women.13 From the Western perspective, Muslim women generally live under cultural servitude and control often in squalid conditions, crowded quarters, with lack of privacy and emotional instability. In a polygamous relationship there is no concern for the emotional, social oi spiritual needs of women. The polygamous marriage seemingly provides insufficient consideration for women's equal rights or gender equality in contemporary society. The account ofK.hadi Keita, a Muslim woman living in a polygamous household in France, characterizes the experience as: 11 ld. 12 ld. 13 See An-Na'Im note 9 at 183. 7


unbearable because there is no room for two or three wives and 15 children in one small place. The women are rivals. The husband is never fair. He has a favorite so there are horrible fights. You hear everything, your husband and the other wives. You hear how he behaves with his favorite, usually the new one. The women end up hating the man. Everyone feels bad inside. 14 In a recent period of secularization during which western influence introduced the concepts of equality and the emancipation of women, Islamic law relating to women's rights was relaxed. These changes occurred even where the practices appeared to be incompatible with Shari'a policy.15 Today, a resurgence of fundamentalism in many Muslim countries, reflecting a reaction to western secularization and once again diminishing women's equality, calls for a return to the Shari'a as the sole source of all aspects oflslamic law.16 Although the fundamentalist movement has had a dominant societal influence, numerous sources of international law which directly contradict the legitimacy of polygamy continue to influence and delegitimize the current narrow Shari' a doctrine which governs women's rights in the Islamic culture. 14 Marlise Simons, In France African Women Are Now Fighting Polygamy, N.Y. TIMES, Jan. 26, 1996, at A1, A4. 15 Alexandra J. Zolan, The Effect of Islamization on the Legal and Social Status of Women In Iran, 7 B.C. THIRD WORLD L.J. 183, 189 (Spring 1987). 16 Id 8


CHAPTER3 WOJ.\.1EN'S RIGIITS AS HUMANRIGIITS: INTERNATIONAL LAW PRINCIPLES .The Evolution of International Law and the Public/Private Distinction From its beginnings international law, conceived and designed by the white Western male, has been and remains androcentric. All international human rights platforms are based on and reinforce the distinction between the public and private aspects of society. 17 As established the UN Charter, the jurisdiction of international law was limited to the public spheres of the workplace, law, economics, politics, intellectual and cultural life, all traditionally the province of the male. 18 The private domain includes the sphere of interpersonal and family relations, human interactions, the home environment, stereotypically the province of the female. 19 The bias toward masculine vocabulary present in most human rights instruments operates to both 17 See Hillary Charlesworth, What are"Women 's International Human Rights"? in HUMAN RIGIITS OF WOMEN 58, 69 (Rebecca J. Cook, ed., 1994). 18 UN Charter, Art. 55 states "[w]ith a view to the creation of conditions of stability and well-being which are necessary for peacful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and (c) universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. UN Charter in INTERNATIONAL LAW: SELECTED DOCUMENTS AND NEW DEVELOPMENTS, Barry E. Carter & Phillip R Trimble, eds., 3, 16 (1994). 19 Charlesworth, supra note 17 at 68. 9


silence and exclude half of the world's population.20 Women and women's issues were essentially excluded from the international debate based on the public/private distinction until the United Nations declared the Decade for Women in 1975.21 Customazy Law as a Basis for Women's Human Rights Western-based human rights are claims to political and legal equality in a universal framework, a political means of recognizing human dignity in a legally binding way.22 The sovereign state, not the individual, has been the traditional focus of customary international law. The domain of international human rights law was limited to relations between nations to avoid any conflict with state sovereignty. Individual rights remained within the sole jurisdiction of the state, leaving nations free to affirm cultural and religious inequities. Following World War II, the Nuremberg Trials portrayed the inhumanity of the German state and awakened the international community to the fact that certain acts perpetrated upon individuals in the name of the sovereign were universally egregious and demanded scrutiny. Individual human rights, once the province of the sovereign state, now came under the penumbra ofintemationallaw.23 20 Jd. 21 THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN, 1945-1996, 37-39 (United Nations Press 1996)(hereafter The United Nations). 22 Heiner Bielefedlt, Muslim Voices in the Human Rights Debate, 17 HUM. RTS. Q. 587, 591 (1995). 23 Shirley C. Wang, The Maturation of Gender Equality Into Customary International Law, 27 N.Y.U. J.INT'LL. & POL. 899, 900 (Summer 1995). 10


These principles evolved into customary international law (jus co gens), practices which each individual state generally recognizes and accepts as universally binding on all states. The doctrine of jus cogens provides for the acceptance of rights and norms, first principles that are fundamental to international law and applicable to all societies. Based on Western-influenced UN jurisprudence, customary law precepts are applicable regardless of national origin, race, religion, ethnicity or gender. The doctrine cuts across all cultural norms and explicitly incorporates the idea of universality and preeminence into international law. Customary law historically applies to rights that pertain to the dignity and integrity of every human being within a society regardless of gender. These include the right to life, the right to self determination, the right to be free from apartheid and slavery, the right to be free from race discrimination, torture, and genocide. 24 To suggest that women's rights are currently recognized as internationally legitimate or universally accepted under customary law is to suggest a fallacy. Individual and gender specific human rights issues that attach to women are generally not held to come under the province of jus cogens theory. However, significant progress has been made through treaties, declarations and conventions that provide a legal basis for women's rights as human rights. 24 Charlesworth, supra note 17 at 72. 11


International Declarations. Treaties and Conventions: The Women's Convention Islamic religious and cultural customs work against Muslim women by institutionalizing their inequality. In this context, international documents that uphold rights are useful to enforce the rights of women globally. The most significant women's rights imperatives have been achieved through declarations, treaties and conventions. The prohibition of gender discrimination is an element of United Nations precepts. The mandate was first stated in the UN Charter, 25 restated in both The Universal Declaration of Human Rights (UDHR.), 26 and the International Covenants on Human Rights27 and most exhaustively expressed in the Convention on the Elimination of All Forms ofDiscrimination Against Women?8 The Women's Convention is a UN document that establishes international standards for women's rights upon which governments are requested to take positive action to comply with those standards. A state may either sign the convention, indicating its broad agreement with the provisions of the document or ratify the convention and take positive measures to achieve its conditions. The convention 2SU".N. Charter arts. 1, 55 see supra note I for content of articles. Declaration see supra note 1. 27G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1967). 28Women's Convention, supra note 1. 12


becomes an enforceable international treaty among those countries that have agreed to its ratification. 29 In scope and effect, the Women's Convention is the most comprehensive and far-reaching of all international treaties pertaining to women's rights. The objectives go well beyond standard general human rights language. These objectives include particularized, comprehensive aims to ensure the full development and advancement of women and the elimination of discrimination ingrained in social and cultural life. 30 In historic fashion, the Convention prescribes a state duty to counter discrimination against women in private as well as public life, even where such choices might remain with the individual.31 The following selected excerpts from the Women's Convention clearly support the proposition that polygamy is in direct conflict with international human rights law.32 Part I of the Women's Convention defines gender discrimination as: any distinction, exclusion or restriction made on the basis of sex which has the effect of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and 29 See Women's Convention, supra note 1, art 17(1) "[f]or the purpose of considering the progress made in the implementation of the present Convention, there shall be established a Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee)" and art 18(1) "State Parties undertake to submit to the Secretary-General of the United Nations, for consideration of the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the Convention and on the progress made 30 See grmerally Women's Convention, supra note 1arts. 1, 3, and 5. 31 See generally supra note 1arts. 1, 5, 12, and 16,. 32 Of the 132 signatories to the convention as of 1994, the following are considered to be Muslim countries where over 70% of the population is Muslim: Bangladesh, Egypt, Indonesia, Iraq, Jordan, the Libyan Arab Jamahiriya, Mali, Morocco, Tajikistan, Senegal, Tunisia, Turkey, and Yemen. 13


fundamental freedoms in the political, economic, social, cultural, civil or any other field.33 Article 2 ofthe Women's Convention creates a domestic enforcement scheme ensuring that: [ s ]tate parties condemn discrimination against women in all its forms, agree to pursue, by all appropriate means and without delay, a policy of eliminating discrimination against women and, to this end, undertake: (a) [t]o embody the principle of the equality of men and women in their national Constitutions or other appropriate legislation if not yet incorporated herein, and to ensure, through law and other appropriate means, the practical realization of this principle; (b) [t]o adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) [t]o establish legal protection of the rights of women on an equal basis with men to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) [t]o refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) [t]o take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) [t]o take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. 34 Article 5(a) taken with Article 16(1) directs that state parties take all appropriate measures: [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; and [ s ]tate Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women; (a) The same right to enter into marriage; 33Women's Convention, supra note lat art. I. 34 !d. at art 2. 14


(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution;35 Taken together, these articles constitute a direct legal responsibility for state parties "to pursue, by all appropriate means and without delay," such a policy of gender equality. 36 An analysis of the Women's Convention reveals that states-parties to the convention have both the legal responsibility and requisite accountability to protect the rights of their citizens. The Convention obligates states-parties to adopt legislative and other measures to eliminate discrimination in customary practices and to take appropriate measures to modify social and cultural patterns based on stereotyped roles for men and women. Finally it requires states to ensure the equality of men and women in all matters relating to marriage and family relations. Under Muslim law, private marital and family law is controlled by the Shari' a, which focuses not on gender equality, but on male control through personal status laws. In many areas, Shari'a law and the Convention are in direct conflict regarding state-mandated marital practices. While many Islamic states have ratified the convention they have simultaneously entered reservations which serve to dilute the efficacy of the document. 35 /d. at arts. 5(a) and 16(1). 36 /d. at art. 2. 15


The Effect of Islamic State Reservations to the Women's Convention Of the current signatories to the Women's Convention, 13 are Islamic nations and most have registered reservations based on conflicts with Islamic law. 37 Article 28 of the Convention deals with reservations and states that: (I) the Secretary-General will receive and circulate the text of reservations made by a state to all other statesparties at the time of ratification; (2) any reservation that is incompatible with the object and purpose is not permitted; and (3) reservations may be withdrawn upon notification to the Secretary-General. 38 A reservation is an explanatory justification that releases states-parties from a specified legal duty or obligation of the agreement. The reservation most often cited by Islamic states parties concerns Article 16, the marriage and family requirement of the Convention.39 This reservation neutralizes the state's enforcement of marital and family equality based on the Islamic duty to adhere to the provisions of Shari' a doctrine. 40 These reservations which modify the legal effect of certain provisions that conflict with Shari'a law, pay homage to cultural differences at the expense of human rights doctrine. 37 See supra note 30. 38Women's Convention, supra note 1 art. 28. Convention, art 16. Requires that "States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations . 40 An-Na'im, supra note 8 at 511. 16


The object of the Women's Convention is not to create but to affirm women's rights. The reservations cited by Islamic nations prevent any significant change in the social, cultural or economic status of Muslim women. Reservations entered by Islamic nations which dilute the efficacy of the Women's Convention should be balanced with cultural considerations to allow the more inclusive and progressive international law to reshape discriminatory religious laws. 17


CHAPTER4 INTERNATIONAL LAW AND CONFLICTING STATE PRACTICE Under international law state-parties to the Women's Convention are responsible for bringing their domestic law and practice into conformity with their obligations to promote and protect women's rights. This duty applies to all domestic law whether enacted by formal legislative act or based upon religious principles. This concept of state responsibility is consistent with international law and the sanctity of state sovereignty, as states are not expected to conform, but rather to fulfill the obligations they assume by becoming party to a treaty. As the following cases show, where archaic and often barbaric laws are based upon deeply rooted religious and customary principles, compliance with international treaty may take more than legislative fiat. Velasquez Rodriguez v. Honduras and State Responsibility Historically the legal application of human rights protection has held that states are generally not responsible for the actions of private persons which are contrary to international law. A litigant must show that state action rather than a family or personal harm has taken place to assert a claim. This distinction leaves women little legal protection against private acts of discrimination. 18


However, a precedential decision by the Inter-American Court of Human Rights in the Velasquez Rodriguez v. Hondurai1 case holds that even where no state action exists, the failure of the sovereign to act, does not excuse the state's responsibility to implement its human rights commitments. In Velasquez Rodriguez politically motivated disappearances of Honduran citizens were shown not to have been overtly carried out under government auspices. The theories of applicability which derive from Velasquez Rodriguez are based upon government agency theory, government complicity theory and the theory of unequal application of the law. The court articulated an affirmative state duty to enforce its human rights obligations and found violations where the state failed to organize government apparatus or any other organization through which public power is exercised to ensure the full and free exercise of all human rights. 42 Applying the Velasquez Rodriguez analysis to the enforcement of the Women's Convention, establishes a duty for the ratifying state to intercede in statesanctioned private practices such as polygamy which conflict with international law and to investigate, correct, compensate and appropriately punish private violations of human rights. 43 4128 I.L.M. 294 (1989) [hereafter Velasquez Rodriguez]. 42ld. note 84 at 323. 43 Rebecca J. Cook, State Accountability Under the Women's Corrvention, in HUMAN RIGHTS OF WOMEN 228, 238 (Rebecca J. Cook, ed., 1994). 19


However, a state's legal duty is often more easily enunciated than enforced. The case law that follows provides insight into the complexities that attend reconciling state policy with women's international rights protections. Secular v. Religious Law: The Shah Bano Case In the 1985 case Mohd Ahmed Khan v. Shah Bano Begum, India's Supreme Court attempted to reinterpret the Shari' a law of divorce as consistent with international equality standards. 44 The Shah Bano case involved a Muslim man who summarily divorced his wife of forty years, as was his right, and made a required onetime maintenance payment, as was his duty, under Islamic personallaw.45 Under the secular Code of Criminal Procedure oflndia, the court held him responsible for further maintenance payments to his indigent wife. 46 The Supreme Court interpreted verse of Qur' an without the benefit of comment from Muslim religious leaders to whom Qur'anic translation falls exclusively. The court boldly interpreted the purpose of the secular statute as preventing destitution and as in no way contradictory with Shari'a maintenance law.47 Even more controversial than efforts by the Court to interpret the Qur' an, was its dictum stressing the need to adopt a uniform civil code to replace the personal 44 (1985) 3 S.C.R 844. 45 See infra at 35, discussing the law controlling marriage and divorce. 46 Donna J. Sullivan, Gender Equality and Religious Freedom: Toward a Framework For Conflict Resolution, 24 N.Y.U. J. INT'L. L. & POL. 795, 850 (Winter 1992). 47 Id. 20


status laws applicable to the various religious communities in India. Historically, such reform had been accomplished from within the individual religious communities. The court, believing that no religious community would make an effort to reform the law to comply with civil code, took it upon itself to do so.48 The result of the decision was widespread protest within India's minority Muslim community and a tirade against usurpation of Islamic religious authority by the government. 49 The Government responded to intense political pressure, and consistent with the Shari'a, adopted the Muslim Women Protection ofRights on Divorce Act of 1986. This act provided that a divorced woman's relatives and Muslim religious endowments and not the ex-husband are responsible for ongoing maintenance should divorced wives become indigent. 50 Shah Bano clearly supported the need for reform of Muslim law, yet the Muslim minority tenaciously protected its religious beliefs. The case provoked a hardening of attitudes and a backlash that led to the statutory reinforcement of the community's resistance to change. From a Western viewpoint, reform mandated by secular law alone is unlikely to achieve fundamental change for women. Where the government does not work 48 /d. at 851. 49 The attempt at secular judicial reform was particularly inappropriate within the context of the increased violence and anti-Muslim feelings within the Hindu community. As such the minority Muslim community in India, a predominantly Hindu nation, perceived the decision as a discriminatory, anti-Muslim act that expressed disrespect for Muslim religious law. Id at 851. so /d. 21


with the religious community toward securing refonn, the change will not be readily accepted, if accepted at all. Where restrictions on religious law and practice are necessary to protect the rights of women, legal reform must be undertaken with the support of and with sensitivity to the religious communities. Women's Rights: International Law Decisions With increasing regularity women are using the international courts to secure their rights in their respective countries. In two cases before the Human Rights Committee, women challenged and successfully defended their rights under international law. In S. W.M Broeks v. The Netherlands, the plaintiff, a woman and an unemployed wage earner, had her sociai security payments discontinued because of her status as the secondary rather than primary source of her family's iricome.51The claimant petitioned for and won equal distribution of social security benefits regardless of her earnings status. The committee held that under article 26 of the International Covenant on Civil and Political Rights (equal protection under the law) a state once having adopted social security legislation must provide the benefit equally regardless of gender. 52 51 S.W.M. Broeks v. The Netherlands (Commwrication No. 1722/1984), UN GAOR, 42nd Sess., Supp. No. 40, at 139, U.N. Doc. N42/40 (1987). 52 !d. 22


A case pertinent to the issue of polygamy, In re Aumeeroddy-Cziffra and Nineteen Other Mauritian Women, in which gender specific laws limited the rights of foreign husbands but not foreign wives to gain Mauritian resident status, was brought before the Human Rights Committee on the issue of sex discrimination. 53 The Committee determined that the intent of the legislation, although represented as a security issue, was discriminatory with respect to Mauritian women and therefore unjustifiable. 54 A more persuasive application of international human rights law over conflicting state law is cited by Attorney General v. Unity Dow. 55 This case before the Botswana Court of Appeals was brought by Unity Dow, a natural-born citizen of Botswana, who married and had children with a foreign husband. The Citizenship Act of 1984 prohibited Unity Dow from conferring citizenship upon her legitimately born children because of their alien father. The two children born of the marriage after 1984 were not allowed the citizenship of their mother. A male citizen married to a foreign wife would have encountered no such restriction. The court, noting that Botswana was a signatory to the Universal Declaration of Human Rights, held that 53 In re Aumerreuddy-_Cziffra and Nineteen Other Mauritian Women (Communication No. R. 9/35), U.N. GAOR, 36th Sess., Supp. No. 40, at 134, U.N. Doc. N36/40. 54 Id ss Attomey General v. United Dow, C.A Civil Appeal No. 4/91 Botswana (unreported) in Rebecca J. Cook, Women's Intemational Human Rights Law: The Way Forward, 15 HUM. RTS. Q. 230, 243 (1993). 23


the fundamental rights and freedoms, liberty of movement, and right to nondiscrimination of the mother had been breached, and stated: Botswana is a member of the community of civilised States which has undertaken to abide by certain standards of conduct, and, unless it is impossible to do otherwise, it would be wrong for its Courts to interpret its legislation in a manner which conflicts with the international obligations that Botswana has undertaken. 56 The above cases illustrate the inherent clash between Western-influenced human rights laws and various practices that conflict with these prescriptions. Women's rights have diluted social significance when they are state imposed and in direct conflict with ethnic or cultural identity. State mandated laws have minimal impact where the culture is unwilling or ill-prepared to accept change. While some accept feminist ideas, the resistance on the part of many Muslim women to embrace the concept of global feminism can be traced to the Western influences on the international human rights movement which often conflict with the cultural practices, issues, and goals oflslamic women. 56ld. 24


CHAPTER5 HUMAN RIGHTS AS UNIVERSAL WOMEN'S RIGHTS: AN ANALYSIS OF WESTERN AND ISLAMIC FEMINISM International human rights laws aspire to constitute a body of normative political and legal standards. However, the significant historical and cultural differences among the nations, states and ethnic groups that make up the world community create obstacles toward the creation of universally applicable human rights principles. During the drafting of the Universal Declaration ofHuman Rights in the 1940's, a statement issued by the American Anthropological Association suggested that the Declaration would serve as "a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America," and that "standards and values are relative to the culture from which they derive."57 These assertions establish the boundaries of the debate between the universal application of human rights (universalism) and the concept of the cultural supremacy of law (cultural relativism) and define the degree to which a state may subordinate an individual's protected human rights in the name of culture or religion. 57 American Anthropologist Ass'n, Statement on Human Rights, 49 AM. ANnrn.oPOLOGIST 539 (1947). 25


From Whose Perspective? The Universalist/Cultural Relativist Debate The predominantly Western doctrine of universalism holds that all humans share universally applicable inalienable rights demonstrated by definable, crosscultural moral tenets. 58 This theory provides a universal standard by which the world community may judge the way states treat their citizens. Accordingly, where the state practice is in noncompliance, steps may be taken to effectuate conformity with that international norm. 59 The universalist doctrine of human rights is rooted in the Western philosophies of natural rights, positivist, and social contract theories. The universal approach relies on the essential moral value of the human experience and the appropriate application of human reason which, independent of history, creates normative moral truths. 60 It assumes that there are laws that are so basic as to be recognized as fundamental in all cultures. Based on this theory the creation of a body of international human rights law that both protects women and provides a platform for their complete integration into political, social, and legal society is attainable. Conversely, the theory of cultural relativism, generally promoted by Thirdworld countries (including Islamic nations), holds that culture is the primary source of 58/d. 59 Ann Elizabeth Mayer, Cultural Particularism as a Bar to Women's Rights: Reflections on the Middle Eastern Experience, in WO.MEN's RIGHTS HUMAN RIGHTS 176 (Julie Peters & Andrea Wolper eds., 1995). 60 !d. 26


normative systems from which standards are interpreted and implemented. They reason that culture serves as the sole source of the legitimacy of moral precepts and as a result human rights vary from state to state.61 Theoretically, universal human rights standards cannot be formulated because culturally based precepts are inviolable and give rise to vastly differing definitions of what constitutes a "human right." Activities perceived as human rights violations in one state may be acceptable under the cultural beliefs of another. 62 Additionally, cultural relativists dispute the validity of universal nonns relying on the premises that "knowledge and truth are culturally contingent, creating a barrier to cross-cultural and that all cultures are equally valid. "63 In essence, these postulates severely limit the rationale for the universal application of human rights. The Women's International Human Rights Movement The history of the women's international human rights movement is undeniably linked to both the growth of Western feminism and the United Nations human rights process. Non-western states have argued that the hierarchy of human rights created by the UN is rooted in the hegemonic Western male culture. These 51 See An-Na'Im. sup;a note 9 at 171. 52Elene G. Mountis, Cultural Relativity and Universalism: Reevaluating Gender Rights In a Multicultural Context, 15 DICK. J. INT'L. 113, 114 (Fall1996). 53 Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HAR.v. WmJEN's L.J. 89, 95 (Spring 1996). 27


rights promote civil and political rights over the economic, social and cultural concerns of Third-world women in a manner that is biased toward Western political, economic, social, and cultural traditions. 64 As expressed in its Charter of 1945 the United Nations has, from its inception, theoretically been committed to the notion of universal gender equality.65 Regardless, it took almost thirty years for the UN to embark on the journey toward fulfilling its advocacy of gender equality. In 1972 the UN General Assembly declared a Decade for Women with 1975 marking the first International Women's Year.66 The emphasis was to promote equality between the sexes and to begin the task of empowering women by involving them in the international process. 67 UN endorsement of the Decade for Women served to promote and legitimize the international women's movement. 64 The notion of Third World or Third World feminism relies on stereotypical geographical and sociohistorical premises and includes minority populations in Western cultures who are similarly situated both socioeconomically and ideologically with peoples of Africa, Asia, Latin America and the Middle East. An entire thesis could be dedicated to the question of "Third-world" and "Third world issues." See Chandra T. Mohanty, "Cartographies of Struggle: Third World Women and the Politics of Feminism" in Third World Women and the Politics of Feminism (Chandra T. Mohanty, et al. eds., 1991), 2. 65 The Charter of the United Nations [hereafter, UN Charter] entered into force October 24, 1945. See Barry E. Carter & Phillip K. Trimble INTERNATIONAL LAW: SELECTED DOCUMENTS AND NEW DEVELOPMENTS 1 (1994). Article I, sec. 3 states that the purpose of the UN is "(t)o achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." 66 Judith McKenna, Symposium on Women's Rights in International Law Address: Address Given at the Fourth Annual International Law Symposium, 9 WHITilERL. REv. 407, 407 (1987). 67 !d. 28


The observance of the International Women's Year included the first of the United Nations World Conferences on Women held in 1975 in Mexico City. The purpose of the conference, attended by 1000 delegates from 133 countries, was to evaluate the global status ofwomen.68 What resulted was a power struggle between Third World and Western feminists to establish leadership and focus and more importantly, the adoption of three women's instruments. The first document adopted was The Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace which served to affirm the parity between men and women as to rights, opportunities and responsibilities. 69 The Mexico City conference also adopted the World Plan of Action for the Implementation of Objectives, a performance-based plan of minimum attainable goals to improve the status ofwomen at the national level. Attentive to the vast differences among women iii different nations, the World Plan of Action presented a global accord to identify and target national strategies to improve the condition of women focusing on the concerns of women in Asia and Africa. 70 The most authoritative and far-reaching document approved in Mexico City and adopted by the UN General Assembly in 1979 was the legally binding Women's Convention, the codification of the anti-discrimination principles ofthe 1967 68 /d. 69 McKenna, supra note 66, at 407. 70 /d. at 408. 29


Declaration on the Elimination of Discrimination Against Women. 71 This document identified the magnitude with which exclusionary practices and restrictions imposed upon women impede their equality. Thirty articles set out an agenda for the global legislation of equal rights for women in the political, economic, social, cultural and civil arenas with a supervisory mechanism for oversight and progress reporting. 72 By 1980, the second Women's Conference was convened in Copenhagen, Denmark to assess the progress of Mexico City's goals of equality and development and to adopt the expanded Program of Action For The Second Half of The Decade. This document more narrowly defined the broad goals of Mexico City and more completely described the obstacles facing women by expanding into the areas of health, employment and education with recommendations on the alleviation of poverty, unemployment and domestic violence. The Program called for stronger national measures to ensure women's ownership and control of property as well as improvements in women's rights to inheritance, child custody and loss of nationality. 73 The third Women's Conference in 1985 in Nairobi, Kenya, attended by over 2, 000 delegates from 157 nations, assessed the progress and marked the end of the Decade for Women. From this conference emerged The Nairobi Forward Looking 71 See supra note 1. 72 !d. 73 L. Amede Obiora, Feminism, Globalization, and Culture: After Beijing, 4 IND. J. GLOBAL LEGAL Sroo. 355,360 (Spring 1997). 30


Strategies for the Advancement of Women the blueprint for the international women's movement and measures for implementing equality at the national level through the year 2000. Much to the frustration ofWestern feminists, the non-Western majority focused on economic marginalization, debt crises, restrictive monetary policies, and militarization rather than sex or job equality. At the conclusion of the Decade for Women it became apparent that despite years of determined effort the campaign for equality had failed to sustain its progress and achieve its goals, with virtually no improvement in the employment, health, and education of women. 74 The Fourth United Nations World Conference on Women in Action for Equality, Development and Peace held in 1995 in Beijing, China celebrated the fiftieth anniversary of the UN and consolidated the legal advances that had elevated the human rights of women (and men) in law and in fact. The Platform identified the critical problem areas that affect women's quality oflife.75 Differences that existed among delegates present at prior Conferences were particularly heated at Beijing with the role of religion, culture, and the family creating areas of discord. 74 THE UNITED NATIONS, supra note 21 at 48. 7>rhese include the bUTden of poverty, unequal access to education and unequal access to education and unequal access to health care; violence against women; women as objects of war; inequality in economic structures and inequality in access to resources and decision making power; inadequate mechanisms to protect and promote women's human rights; stereotyping of women; gender inequalities in the management of natural resources and in safeguarding the and protection of girl children. See THE UNITED NATIONS, supra note 21 at 64. 31


The international women's movement, with its unsettled history, has been denounced by some Islamic women as being little more than a series of prescriptions reducible to Western socio-economic, political and religious custom and in no way representative of Third-world women. The persona of"woman" implied in international women's rights doctrine is "the free, independent woman as an individual endowed with rights and rational agency ... the culmination of the enlightenment project, the 'rights of man' now being enjoyed by women."76 Muslim women living in a patriarchal, religious society are told that Westerninfluenced international law is antithetical to their liberty. It is argued that Western ideas subject them to the dichotomy of domestic and public work which takes women from their families. Many women believe that through male dominance, the Islamic process, and Shar'ia law liberation will be achieved. The cultural differences between international and Islamic law have influenced many Muslim women to fonnulate their own independent set of feminist ideologies. The Islamic Feminist Perspective Like most cultures, Islam, based on the Qur-an and Shari' a law, is a complex mix of diverse and often conflicting interpretations of fundamental principles. The broad geographic sweep oflslamic culture from Senegal in the West to Indonesia in 76 Radhika Coomaraswamy, To Bellow like a Cow: Women, Ethnicity and the Discourse of Rights in HUMAN RIGHTS OF WOMEN, 39,40 (Rebecca J. Cook, ed.,l994). 32


the East and from Mauritania in the South to Central Asian former Soviet Republics in the North affords varied cultural influences and provides no consensus of opinion regarding the human rights of women. 77 Therefore, the ideas considered in this overview are based on the mainstream traditional, and in more recent times, fundamentalist precepts of Islamic principles which are common to all Muslims. 78 The positions ofMuslim feminists and their Western counterparts diverge on many issues. The fundamentalist regimes, echoing the observation of Golda Meir, portray Western feminists as "those crazy women who bum their bras and go around all disheveled and hate men [and think] it's a misfortune to get pregnant and a disaster to bring children into the world." 79 The Islamic culture perceives Western individualism as counterproductive to their religion and their society. Most Islamic women support their cultural traditions and accept the Qur' anic doctrine that women are not subordinate to men but rather subject to a different set of protections based on their gender. The role of the woman is to create and maintain the Muslim family while being protected and restrained by her husband and society.80 17 Urfan Khaliq, Beyond the Veil? An Analysis of the Provisions of the Women's Convention in the Law as Stipulated in Shari 'ah, 2 BUFF. J. INT'L L. 1, 7 (Spring 1995). 78 To suggest that all Islamic societies adhere to traditional or fundamentalist views provides an inadequate interpretation. Currently, many Islamic states are revisiting their private and family laws in an attempt to greater equality for women. See generally, Heiner Beilefeldt, Muslim Voices in the Human Rights Debate, 17 HUM. RTS. Q. 587 (1995). 79 Alison E. Graves, Women in Iran: Obstacles to Human Rights and Possible Solutions, 5 AM. u.J. GENDER& L. 57, 64 (Fall1996) (quoting Simona Sharoni, Gender and the Israeli-Palestinian Conflict, TilE POLITICSOFWOMEN'SRESISTANCE, 99 (1995)). 80 Khaliq, supra note 77 at 13. 33


Equality exists for women only in the eyes of God and differences between the sexes are mandated by the relationship to the family, its role and its functions. Muslim women unselfishly subordinate their own needs to the welfare of the family and larger community.81 From the Western perspective, guardianship principles established in the Qur' an merely serve to subject women to discrimination in marriage and family relations, the political process, education, inheritance, divorce, and dress. Activist Muslim women, unlike their Western counterparts, act within the system rather than in conflict with it as the notion of agitating against the government to obtain rights is alien.82 Because most Islamic societies prohibit a woman's right to political assembly, protest or criticism many women choose to belong to the political party supported by their husband and assert party platforms rather than feminist rights.83 The choice to work within the prevailing ideologies and initiate political activism within religious or maternal discourses is a pragmatic choice in a state where women are political second-class citizens as a result of being religious second-class citizens. However, those activists who choose to risk threats of death, imprisonment or bodily harm do so not to achieve Western notions of sexual equality but rather to 81 See al Faruqi, supra note 10. 82 Gmves, supra note 79 at 64. 83 !d. at65. 34


protest unjust Muslim traditions such as dowry, divorce inequity, and dress regulation. 84 The male guardianship of wives is interpreted as a husband's rights platform. A wife is expected to submit to her husband's authority and in some instances may not work or leave the home without permission. 85 This standard gives rise to laws which allow men to divorce at will while women must meet specific judicial criteria, disabling the woman in the society and leaving her with the constant threat of economic and emotional destitution. 86 When Muslim women are divorced by their husbands, they lose all assets of the marriage, receive a one-time maintenance payment, and may even lose custody of their children. In disgrace, they are forced to leave the marital home (an asset belonging solely to the husband) and return to the home of their father often in poverty.87 In the marriage relationship the woman remains in a continuous state of disempowerment. Convinced that securing rights in marriage and divorce will provide Muslim women with a more stable position in their society, activists have made the development of divorce rights for women a top priority. 88 84 /d. at 67. 85 Mountis, supra note 62 at 129. 86 /d. 87 /d. 88 Graves supra note 79 at 70. 35


Islamic women also strive for autonomy in dress as their law prescribes complete covering in public places. 89 Because many fundamentalists believe that the dress code represents the moral foundations of Islamic society, women live in fear of arrest, attack or vilification for even innocent violations. Additionally, the prescribed veil and heavy black cloth garments worn in predominantly hot climates present obvious health risks to women. Islamic men living under the Qur' anic system have no equivalent dress code and are free to dress as they wish. A final aspect of Islamic feminism is that because organizations are traditionally class based almost none strive to unite for the common good of Islamic women. As a result "there is a social stigma ingrained in [the] culture against association between classes, and many lower class women who do not have the resources or time ... to organize their own 'feminist' groups often are left behind."90 It is apparent that the issues of Muslim feminists are different from those of their Western counterparts, and universal ideologies must accommodate these differences. Women living in nonWestern states argue that human rights are clearly biased toward Western cultural concerns of gender equality, civil, and political rights, and are inadequate to address the needs of nonWestern cultures. When Western nations criticize these practices, the criticism is characterized as continued imperialism and interference in the internal affairs of sovereign nations. In an effort to compromise 89 !d. 90 !d. at 72. 36


these theoretical constructs and create universal precepts, feminists worldwide must consider the common experiences of women globally while analyzing cultural norms based on a clear understanding of local customs and values. It is within this balanced cultural construct that the analysis of a global feminist approach to human rights must be viewed. 37


CHAPTER6 RECONCIT...ING THE PRACTICE OF POLYGAMY AND HUMAN RIGHTS DOCTRINE THROUGH REINTERPRETATION Polygamy has remained a contentious issue in Islamic society not solely because. it is a common practice, but as a symbolic rallying posture of religious traditionalists as well. The practice of polygamy, clearly distinct from Western culture's professed monogamy, serves as point of demarcation from the encroaching Western liberal ideology toward women and family relations. The Shah Bano case typifies the backlash that follows secular attempts to delegitimize religious law. In a religious legal system such as Shari' a, a direct challenge to the law based on public policy arguments fails because the law relies heavily on religious scripture rather than consensus or majority rule. To gain widespread acceptance, any change to the existing law presupposes a rational interpretation of religious authority. The religious and cultural foundations oflslamic law make it difficult for Muslims to reconstruct Shari'a to make it comply with international law. A useful strategy may be to emphasize reform of all religious law that infringes upon women's rights rather than focusing on any one community. Scrutinizing western and eastern religious practice with an eye towards human rights reinterpretation evens the playing field. Although it is established that human rights 38


provide for international gender equality, the most judicious way to begin to challenge the inferior status of women within Muslim society is to demonstrate that the rights of women are oflslamic and not alien Western origin. Reinterpreting religious texts from a human rights and women's perspective provides an interesting approach. Applied to Shari'a law, one could argue that passages which legitimize gender inequality have only historical context and must therefore be continually reinterpreted in an evolving society. A contemporary view of the Qur' anic passage which purports to affirm the practice can be interpreted as prohibitive of polygamy in the modem world. 91 Such a contemporary and less permissive reinterpretation of the passage focuses on the application that one wife is more suitable and more just under the Qur'an. One possible interpretation of the multiple marriage passage asserts a wartime exception where the few remaining men left to provide family for orphaned children may need additional female assistance. In any other circumstance, monogamy may be read as the norm.92 This passage from Qur'an 4:3 taken with verse 129 of the same chapter which rules that justice among co-wives is impossible to achieve can be used as a new interpretation and legal argument to restrict polygamy.93 91 The Glorious Qur'an, supra note 7. 92 Donald L. Horowitz, The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change {Part I), 42 AM. J. COMP. L. 289 (Spring 1994). 93 Abdullahi An-Na'i.m, The Rights of Women and International Law in the Muslim Context, 9 WHITIIER L.REV. 495 (1987). 39


Most importantly, to achieve any impact, interpretive reforms must be coupled with other measures such as educational initiatives, internal discourse, and cross cultural dialogue, which serve to provide a basis for debate. These measures must be followed by transition periods to establish an understanding for and acceptance of new principles. Any compliance of religious and customary practices with international standards will succeed only where accompanied by a concomitant transformation in popular beliefs and attitudes. 40


CHAPTER 7 CONCLUSION International law plays a dominant role in legitimizing the rights of women worldwide. The reservation process and claims of ethnic and cultural preemption divest the law of its significance. Where states-parties, such as those Muslim nations that have registered reservations to the Women's Convention, use such avenues to defend obvious violations of human rights, the need to convince these states to do otherwise is apparent. To become relevant and credible, the international community must assert that under the theory of jus cogens legal duties owed to individual citizens by the state clearly include gender specific women's issues. Further, a collaborative, cross-cultural program to assist states and citizens of Islamic cultures to re-evaluate and restructure outmoded laws such as polygamy or female genital mutilation that clearly contravene human rights doctrine must be initiated. Only through understanding and cooperation can compliance be achieved. Only when Islamic societies understand and accept the transcultural legitimacy ofwomen's rights will the need to preserve abusive traditional practices cease. 41


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